EUROPEAN COMMISSION FOR DEMOCRACY
THROUGH LAW
(VENICE COMMISSION)
DRAFT VADEMECUM
OF VENICE COMMISSION OPINIONS
AND REPORTS
CONCERNING CONSTITUTIONAL
PROVISIONS
FOR AMENDING THE
CONSTITUTION
A.
Introduction
1.
This compendium is a summary of the Venice Commission’s opinions
referring to constitutional provisions for amending the constitution. It is
structured in a thematic manner in order to present the general lines adopted
by the Commission.
2.
The aim of this document, known as a vademecum, is to serve as a
source of reference for drafters of constitutions, researchers and the members
of the Commission. It is based on Parliamentary Assembly Recommendation
1791(2007) on the state of human rights and democracy in Europe and the request for
comments to the Council for Democratic Elections.
3.
This document should serve as a basis for further discussion and for
introduction of new points of view.
B.
Adoption of a new constitution
“126. Article 155
addresses the case of change of the constitution in both a narrow and a broad
sense, thus including the adoption of a new constitution. It is inappropriate
to give parliament the power to adopt an entirely new Constitution. This power
risks undermining the stability of the constitutional system.”
(CDL-AD(2007)047 Opinion on the Constitution of Montenegro)
C. Constitutional Stability
“This Chapter makes it clear that the
drafters want to have a rigid constitution difficult to amend. This should
contribute to the stability of the constitutional system in Ukraine…
It seems excessive to require for the
submission of a draft law introducing amendments to certain chapters of the
Constitution the participation of two-thirds of the deputies. This is the
majority required for the adoption of an amendment.”
(CDL-INF(1997)002 Opinion
on the Constitution of Ukraine, Chapter XIII)
“70.
According to the proposed new Article 111.1, constitutional amendments may also
be adopted through a qualified majority of the National Assembly (on the
initiative by the President or by one-third of Deputies), without submitting
them to a referendum. This proposal would make constitutional amendments more
flexible, while at the same time maintaining the requirement of a referendum in
issues of a fundamental nature, and is thus supported by the Commission.“
(CDL-AD(2004)044
Interim Opinion on Constitutional Reforms in the Republic of Armenia)
“The constitutional amendments introduced
in November 2000 modified to some extent the composition of the House of
Counties, which previously allowed for former Presidents to be life-long
members and also provided for up to five members to be nominated by the
President but is now to be composed only of representatives elected from the
Counties. This House could be seen essentially as a guardian of fundamental
rights and the rights of local and regional self-government, with a right to
participate through debates and opinions in a wide range of decisions of the
parliament. The drafting with regard to the House of Counties was especially
sophisticated with respect to the protection of fundamental freedoms, the
rights of minorities and the principles of local self-government. It passed
decisions on an equal footing with the House of Representatives on a series of
matters, in particular in the adoption of “the laws which elaborate
constitutionally determined freedoms and rights of man and citizen” (Article 81
as amended to November 2000) – a role which may be especially important in
relation to minority rights.
However,
this upper house of parliament was abolished by the amendments adopted in March
2001. It may be regretted that the Constitution was revised twice in a very
short space of time, with the result that full advantage could not be taken of
the possibilities that the House of Counties could have offered after the first
revision of the Constitution, in terms of the representation of new local and
regional authorities but also of new self-governing bodies for minorities that
are in the process of creation under the new law on the rights of minorities.
It may also be noted that the House of Counties was abolished just before the
organisation of local elections and at a time when the constitutional law of
minorities had not yet been adopted. Although there is no element in the
European constitutional heritage that requires the existence of an upper house
of the legislature, it would be regrettable if the unicameralism instituted by
the March 2001 amendments were to make future constitutional revision too easy
and weaken constitutional stability".
(CDL-INF(2001)015 Opinion on the Amendments of 9 November 2000 and 28 March 2001 to the Constitution of Croatia, 4)
D.
Amendments further restricting human rights and fundamental freedoms
“112.
Article 14 contains a provision which would restrict amendments to the
Constitution. The provision would add to
Article 103 of the existing Constitution a new paragraph 2 which would provide
that no changes and amendments are to be permitted in the Constitution that
restrict fundamental Constitutional human rights and freedoms, rule of law
principles and a revision of the Georgian statehood. A reference to international human rights
treaties to which Georgia is a party should also
be included here. There are some concerns about this provision if it had the
effect of freezing everything which is contained in the proposed new Charter of
rights particularly when the provisions in the Charter are so detailed. However, a provision which would prevent
abolition of the most fundamental rights could be desirable but it would seem
important to clarify the precise ambit of the provision. Presumably the question
of whether or not a proposed amendment to the Constitution comes within the
terms of this new provision is to be determined by the Supreme Court but there
do not seem to be any provisions which deal with the question expressly.”
(CDL-AD(2005)003
Joint Opinion on a Proposal for a Constitutional Law on Changes and Amendments
to the Constitutional of Georgia)
E.
Referendums
“36. …Sections 3 and 4 strongly limit the
possibility for constitutional amendments. These provisions, especially read
together with Section 5, are not at all clear. According to section 4 Chapters
4 to 7 may be amended by the Constitutional Assembly and such decisions may be
confirmed by referendum according to section 5.
According to Section 3, Chapter 1 may not be amended. It seems that
section 5 has to be understood, although this is not made explicit, in the
sense that other chapters may be amended by referendum if two thirds of the
Constitutional Assembly so propose.”
(CDL-AD(2003)002 Opinion on the Draft
Constitution of the Chechen Republic)
“101.
An important element in the procedure to amend the Constitution is the
possibility (Article 203.6) and in some cases the obligation (Article 203.7) to
have it endorsed by the citizens in a referendum. It strikes the Commission that
the list of constitutional amendments subject to referendum is very broad,
especially since "the system of authority" as such is mentioned. In
the original language of the Constitution the same term is used for the heading
of Part V. If this implies that the notion "the system of authority"
in article 203.7 is to be read in connection with Part V, the result would be
that every amendment of Articles 98 to 165 would have to be subject to
a referendum. It would be wise to determine more precisely to which
principles of the "system of authority" Article 203.7 of the
Constitution applies
102. Article 203.8 provides only two basic
principles for the organisation of a referendum. As the principle of the rule
of law applies to referendums, further regulation will have to be enacted. The
Commission draws attention to its Guidelines on the holding of Referendums and especially to point
II. 2. a, that states: “Apart from rules on technical matters and details
(which may be included in regulations by the executive), rules of referendum
law should have at least the rank of a statute.” In order to apply article 203,
the Serbian legislator will have to adopt legislation on the organisation of
the constitutional referendum which should be in compliance with the principles
set out in the above-mentioned ‘Code of
good practice on Referendums’.“
(CDL-AD(2007)004 Opinion on the Constitution of Serbia)
F.
Procedures for constitutional amendments
1. Consensus
“28. In its
previously mentionned opinion of 13 December 2003 (CDL-AD(2003) 019), the
Venice Commission stressed the need to secure the legitimacy of any
constitutional reform in Ukraine. It notes the complicated and hurried way in
which a variety of constitutional amendments have been proposed, introduced, amended
and voted on with each proposal being subjected to process of further
amendments in the process. It wishes to stress that constitutional amendments
should only be made after extensive, open and free public discussions and in an
atmosphere favouring such discussions. Amendments should, as a rule, be based
on a large consensus among the political forces and within the civil society.”
(CDL-AD(2004)030
Opinion on the Procedure of Amending the Constitution of Ukraine)
2. Procedures in general
“99. It strikes the Venice Commission, first of
all, that the procedure drafted is very complex, as it involves two or even
three steps: first, the National Assembly has to adopt, by a two-thirds
majority of all deputies, a proposal to amend the Constitution (Article
203.3), and then the same National Assembly has to adopt an act amending the
Constitution by a two-thirds majority of all deputies (Article 203.6). Finally,
Article 205 seems to require the adoption, again by a two-thirds majority, of a
further constitutional law for the enforcement of the amendments to the
Constitution.100. A number of questions arise as to the significance and
use of this procedure. What is the legal effect of the adoption of the proposal
to amend the Constitution? What is the relationship between the votes held by
the National Assembly? What is the use of the complexity that results from this
procedure? The Venice Commission draws attention to the drawbacks of an
excessively rigid procedure for amending the Constitution, as was experienced
in Armenia and in Serbia itself under the Constitution
of 28 September 1990.”
(CDL-AD(2007)004 Opinion on the Constitution of Serbia)
“The
procedure for amending the Constitution looks very complex. This impression may
be partly due to the fact that the
wording of the relevant provisions is sometimes very clumsy.” (CDL-INF(1996)006
Opinion on the Draft Constitution of Ukraine, Section XIII)
“This Chapter makes it clear that the drafters want to have a rigid
constitution difficult to amend. This should contribute to the stability of the
constitutional system in Ukraine. ...
It seems excessive to require for the
submission of a draft law introducing amendments to certain chapters of the
Constitution the participation of two-thirds of the deputies. This is the
majority required for the adoption of an amendment.”
(CDL-INF(1997)002 Opinion on the Constitution of Ukraine, Chapter
XIII)
“38. Pursuant to the revised Article 113,
in order for the referendum on the constitutional reform to be considered
valid, ¼ (instead of previously 1/3) of registered voters must effectively
express their vote. In the Commission’s view, this simplification is to be
welcomed.”
(CDL-AD(2005)025 Final Opinion on Constitutional
Reform in the Republic of Armenia)
“70. According to the proposed new Article
111.1, constitutional amendments may also be adopted through a qualified
majority of the National Assembly (on the initiative by the President or by
one-third of Deputies), without submitting them to a referendum. This proposal
would make constitutional amendments more flexible, while at the same time
maintaining the requirement of a referendum in issues of a fundamental nature,
and is thus supported by the Commission. ”
(CDL-AD(2004)044 Interim Opinion
on Constitutional Reforms in the Republic of Armenia)
3. State organs involved in the procedure
“45. According to the new Article 96 § 2, the
President would have an absolute veto power over amendments to Articles 7, 46
and 58 of the Constitution, which regulate the general division of powers as
well as the respective powers of the Jogorku Kenesh and the President. This
would further enhance the central position of the President within the
constitutional structure. Furthermore, it remains unclear whether the provision
in question would concern only cases when the Constitution is amended by
Parliament (Art. 97) or even when it is amended through a referendum.”
(CDL-AD(2002)033 Opinion on the Draft Amendments
to the Constitution of Kyrgyzstan)
“47. As set forth above, a presidential veto
against draft laws can be overruled only by a two-thirds majority. A
presidential veto against constitutional amendments can be overruled only by a
majority of three fourths of the total number of deputies. It is thus nearly
impossible for the Jogorku Kenesh to adopt constitutional amendments reducing
the powers of the President.”
(CDL-AD(2007)045 Opinion on the Constitutional
Situation in the Kyrgyz Republic)
“69. According to the Constitution currently in
force, constitutional amendments introduced by the qualified majority of
National Assembly shall be submitted to a popular referendum (Article 111 § 4,
emphasis added). The proposed new paragraph of Article 111 of the Constitution
allows for constitutional amendments to be adopted by the majority of
the National Assembly, if the initiative originates from the President of the
Republic. This difference, which strengthens the role of the President with
regard to the National Assembly, does not seem to be justified.”
(CDL-AD(2004)044 Interim Opinion
on Constitutional Reforms in the Republic of Armenia)
“7.
The revision is adopted by a two-thirds majority vote in each house, the
Chamber of Deputies and Senate (Article 147.1).
This is a difficult majority to attain; even the coalition supporting
the government of Mr Nastase (PSD, UDMR) cannot achieve this figure. For the
revision of the Constitution to be adopted, it will have to receive the
approval of the opposition parties, such as the Liberal Party. That should
induce the parties supporting the Government’s action to open negotiations with
the opposition in order to put forward a parliamentary proposal for revision if
appropriate, as Article 146.1 permits.
But at all events the initiative lies with the President. Nor is it certain that the Senate would agree
to a reduction of its powers, at all events not by a two-thirds majority. The
revision procedure is governed by Articles 146, 147 and 148 of the
Constitution. The initiative lies with
the President, at the proposal of the Government or at least a quarter of the
Chamber of Deputies or Senate, or at least 500,000 citizens in possession of
their electoral rights (Article 146.1). Obviously the first possibility
applies, as the text forwarded to the Venice Commission is the Government’s
proposal. The revision is adopted by a two-thirds majority vote in each house,
the Chamber of Deputies and Senate (Article 147.1).”
(CDL-AD(2002)012 Opinion
on the Draft Revision of the Romanian Constitution)
“The constitutional amendments introduced
in November 2000 modified to some extent the composition of the House of
Counties, which previously allowed for former Presidents to be life-long
members and also provided for up to five members to be nominated by the
President but is now to be composed only of representatives elected from the
Counties. This House could be seen essentially as a guardian of fundamental
rights and the rights of local and regional self-government, with a right to
participate through debates and opinions in a wide range of decisions of the
parliament. The drafting with regard to the House of Counties was especially
sophisticated with respect to the protection of fundamental freedoms, the
rights of minorities and the principles of local self-government. It passed
decisions on an equal footing with the House of Representatives on a series of
matters, in particular in the adoption of “the laws which elaborate
constitutionally determined freedoms and rights of man and citizen” (Article 81
as amended to November 2000) – a role which may be especially important in
relation to minority rights.
However,
this upper house of parliament was abolished by the amendments adopted in March
2001. It may be regretted that the Constitution was revised twice in a very
short space of time, with the result that full advantage could not be taken of
the possibilities that the House of Counties could have offered after the first
revision of the Constitution, in terms of the representation of new local and
regional authorities but also of new self-governing bodies for minorities that
are in the process of creation under the new law on the rights of minorities.
It may also be noted that the House of Counties was abolished just before the
organisation of local elections and at a time when the constitutional law of
minorities had not yet been adopted. Although there is no element in the
European constitutional heritage that requires the existence of an upper house
of the legislature, it would be regrettable if the unicameralism instituted by
the March 2001 amendments were to make future constitutional revision too easy
and weaken constitutional stability".
(CDL-INF(2001)015 Opinion on the Amendments of 9 November 2000 and 28 March 2001 to the Constitution of Croatia, 4)
4. Required votes
“99. It strikes the Venice Commission, first of
all, that the procedure drafted is very complex, as it involves two or even
three steps: first, the National Assembly has to adopt, by a two-thirds
majority of all deputies, a proposal to amend the Constitution (Article
203.3), and then the same National Assembly has to adopt an act amending the
Constitution by a two-thirds majority of all deputies (Article 203.6). Finally,
Article 205 seems to require the adoption, again by a two-thirds majority, of a
further constitutional law for the enforcement of the amendments to the
Constitution.”
(CDL-AD(2007)004 Opinion on the Constitution of Serbia)
“This Chapter makes it clear that the drafters want to have a rigid
constitution difficult to amend. This should contribute to the stability of the
constitutional system in Ukraine. …
It seems excessive to require for the submission of a draft law
introducing amendments to certain chapters of the Constitution the
participation of two-thirds of the deputies. This is the majority required for
the adoption of an amendment.”
CDL-INF(1997)002 Opinion
on the Constitution of Ukraine, Chapter XIII)
“7. The revision is adopted by a two-thirds
majority vote in each house, the Chamber of Deputies and Senate (Article
147.1). This is a difficult majority to
attain; even the coalition supporting the government of Mr Nastase (PSD, UDMR)
cannot achieve this figure. For the
revision of the Constitution to be adopted, it will have to receive the
approval of the opposition parties, such as the Liberal Party. That should
induce the parties supporting the Government’s action to open negotiations with
the opposition in order to put forward a parliamentary proposal for revision if
appropriate, as Article 146.1 permits.
But at all events the initiative lies with the President. Nor is it certain that the Senate would agree
to a reduction of its powers, at all events not by a two-thirds majority. The
revision procedure is governed by Articles 146, 147 and 148 of the
Constitution. The initiative lies with
the President, at the proposal of the Government or at least a quarter of the
Chamber of Deputies or Senate, or at least 500,000 citizens in possession of
their electoral rights (Article 146.1). Obviously the first possibility
applies, as the text forwarded to the Venice Commission is the Government’s
proposal. The revision is adopted by a two-thirds majority vote in each house,
the Chamber of Deputies and Senate (Article 147.1).”
CDL-AD(2002)012 Opinion on the Draft Revision of
the Romanian Constitution)
“38.
Pursuant to the revised Article 113, in order for the referendum on the
constitutional reform to be considered valid, ¼ (instead of previously 1/3) of
registered voters must effectively express their vote. In the Commission’s
view, this simplification is to be welcomed.”
(CDL-AD(2005)025 Final Opinion on Constitutional
Reform in the Republic of Armenia)
G. Hierarchy of norms
“36. Section 2 of this Article provides that
amendments to the Constitution may be adopted by a Constitutional Assembly
without specifying in any way the composition of this Assembly. This cannot
however be left to an ordinary law….”
(CDL-AD(2003)002 Opinion on the Draft
Constitution of the Chechen Republic)
H. Lack of
clarity
“36. Section 2 of this Article provides that
amendments to the Constitution may be adopted by a Constitutional Assembly
without specifying in any way the composition of this Assembly. This cannot
however be left to an ordinary law. Sections 3 and 4 strongly limit the
possibility for constitutional amendments. These provisions, especially read
together with Section 5, are not at all clear. According to section 4 Chapters
4 to 7 may be amended by the Constitutional Assembly and such decisions may be
confirmed by referendum according to section 5.
According to Section 3, Chapter 1 may not be amended. It seems that
section 5 has to be understood, although this is not made explicit, in the
sense that other chapters may be amended by referendum if two thirds of the
Constitutional Assembly so propose.”
(CDL-AD(2003)002 Opinion on the Draft Constitution
of the Chechen Republic)
“125. These articles have been left unchanged
in respect of the draft constitution of August 2007. The Venice Commission had
previously expressed the opinion that it was necessary to clarify whether the
adoption of the Act on the Change of the Constitution is the final step or it
has to be followed by the public hearing provided for in Art. 156. In this and
other respects, Articles 155 and 156 overlap in a potentially confusing way.
126. Article 155 addresses the case of change of the
constitution in both a narrow and a broad sense, thus including the adoption of
a new constitution. It is inappropriate to give parliament the power to adopt
an entirely new Constitution. This power risks undermining the stability of the
constitutional system.
127. Article 157, read
with earlier provisions, does not make clear the circumstances.”
(CDL-AD(2007)047 Opinion on the Constitution of Montenegro)
“45. According to the
new Article 96 § 2, the President would have an absolute veto power over
amendments to Articles 7, 46 and 58 of the Constitution, which regulate the
general division of powers as well as the respective powers of the Jogorku
Kenesh and the President. This would further enhance the central position of
the President within the constitutional structure. Furthermore, it remains
unclear whether the provision in question would concern only cases when the
Constitution is amended by Parliament (Art. 97) or even when it is amended
through a referendum. “
(CDL-AD(2002)033 Opinion on the Draft Amendments
to the Constitution of Kyrgyzstan)
J.
Reference documents
1.CDL-AD(2007)047 Opinion on the Constitution
of Montenegro
2.CDL-AD(2003)002 Opinion on the Draft
Constitution of the Chechen Republic
3.
CDL-AD(2005)003 Joint Opinion on a Proposal for a Constitutional Law on Changes
and Amendments to the Constitutional of Georgia
4.CDL-AD(2007)004 Opinion on the Constitution
of Serbia
5.
CDL-AD(2004)030 Opinion on the Procedure of Amending the Constitution of Ukraine
6.CDL-INF(1996)006 Opinion on the Draft
Constitution of Ukraine
7.CDL-INF(1997)002 Opinion on the Constitution
of Ukraine
8.CDL-AD(2005)025 Final Opinion on
Constitutional Reform in the Republic of Armenia
9.CDL-AD(2004)044 Interim Opinion on
Constitutional Reforms in the Republic of Armenia
10.CDL-AD(2002)033 Opinion on the Draft
Amendments to the Constitution of Kyrgyzstan
11.CDL-AD(2007)045 Opinion on the
Constitutional Situation in the Kyrgyz Republic
12.CDL-AD(2004)044 Interim Opinion on
Constitutional Reforms in the Republic of Armenia
13.CDL-INF(2001)015 Opinion on the Amendments
of 9 November 2000 and 28 March 2001 to the Constitution of Croatia
